Dar es Salaam, Tanzania – Nigeria’s booming film industry, born in an intellectual property-free environment, was presented as a case study of how IP needs may vary depending on context during a recent workshop organised by the US Commerce Department. In parallel, representatives of multinational brands and law enforcement delivered a strong message on the gravity of counterfeit trade, highlighting its link to organised crime.

Co-organised by the United States Commerce Department Commercial Law Development Program (CLDP) and the African Intellectual Property Group (AIPG), a new pro-IP association, the regional workshop on Practical Approaches to IP Utilization and Protection in Africa brought together about 150 African government officials, members of law enforcement, IP practitioners, and industry representatives from 19-21 March in Dar es Salaam.

The three-day workshop agenda [pdf] focussed on protecting intellectual property rights and the dangers of counterfeit goods. It also showcased experiences of successful African content creators, whose varying viewpoints highlighted the complex role of intellectual property, especially in the context of developing countries.

“Early Nollywood was a natural experiment of creativity in the absence of intellectual property,” said Olufunmilayo Arewa, professor of law at the University of California, Irvine School of Law. She is writing a book about Nigeria’s film industry, colloquially known as Nollywood, and argues that the model demonstrates that strong IPR is not necessary for innovation. “The role of intellectual property rights is complex,” she said.

Looking back at origins of the Nigerian filmmaking boom, Charles Igwe, managing director of The Big Picture, a Nollywood production company, said that rampantly circulating fakes were actually good for business. He said that the country’s “culture of piracy” helped his films to gain widespread popularity, boost the impact of in-movie advertising, and help to fill supply gaps.

Today, Nollywood releases some 40 to 50 films to the market every week, averaging 2,000 films per year, and surpassing the production rate of Hollywood. With a brand of its own and international notoriety, Nollywood is less appreciative of pervasive piracy today. In particular, producers are starting to fight back against so-called “30-in-1s”, massive compilation DVDs packing up to 30 pirated films on one disk.

“They are not being made by Nigerians, they are made in China, and we want to ban the product from coming into Nigeria. We need to protect this space, so the market can grow as it should,” Igwe said.

Nigerian musician J. Martins was also divided about the role of piracy in the music industry saying that it can make and break a musician. “Some musicians actually go to markets in Nigeria and pay pirates to get a song on one of their compilations,” Martins said.

But his talent manager, Tony Anifite, chief operations manager of Now Muzik, disagreed. “I don’t normally like when people say, oh piracy helped us, took us far, I do not subscribe to that…. In terms of IP, there’s a great problem. We make money from shows, but collecting on royalties is a real issue.”

For Prof. Arewa, it’s a case study in how “IP needs may vary depending on the context” and that it is important to take into account other factors such as the business life cycle, the country’s position on the development ladder, varying copyright owner interests, and the overall business environment.

Other African artists shared their various experiences with protecting intellectual property during the three-day workshop. Senegalese fashion designer Adama Ndiaya, who goes by Adama Paris, said that she often comes across her designs, slightly altered and attributed to another name, in magazines, and said that so far, she has found no recourse. Additionally, she said that protecting her brand in African countries is an inefficient process. “To protect one of my dresses, I have to spend two hours filling out paperwork. Considering that I produce a collection of 60 dresses every two weeks, that’s a lot of wasted time,” Ndiaya said.

Dudu Manhenga, a jazz singer from Zimbabwe and anti-piracy activist, said that she is facing new challenges protecting her works as she has started to build her presence in Europe. “My music is being played all over, while royalties are only being collected in my local area. The money is going to benefit culture in Europe, rather than in Zimbabwe,” Manhenga said.

Counterfeit Trade: A High-Stakes Fight

Meanwhile, representatives of multinational brands, including Hewlett Packard (HP), Unilever, Dolby Laboratories, and Japan Tobacco International (JTI), spoke out about the growing counterfeit trade and its negative consequences. Standing next to law enforcement officials, one of their key messages was its connection to organised crime and terrorism.

According to a study commissioned by the International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy (BASCAP) and conducted by Frontier Economics, the total global economic value of counterfeit and pirated products could reach $1.77 trillion per year by 2015.

This study builds on a 2008 report by the Organisation for Economic Co-operation and Development (OECD) called the “Economic Impact of Counterfeiting and Piracy.” It goes beyond the OECD report by “introducing and examining categories of impacts identified and discussed but not quantified by the OECD report – the value of domestically produced and consumed counterfeit products, the value of digital piracy, and impacts on society, governments and consumers,” according to the study summary.

During a panel presentation, Geoffrey Eyles, a regional investigations manager with HP, said, “We are concerned about the growing market share of counterfeit.” He added that counterfeiters are becoming more sophisticated, shipping the products and the labels separately to avoid copyright infringement.

A former member of law enforcement himself, he said, “We have profound indicators that organised crime is behind a large portion of counterfeit trade.”

Similarly, Karl Lallerstedt, director strategy and communications of JTI’s Anti-Illicit Trade Strategy, also focussed on the organised crime link, saying that there is a high profit incentive and low risk of punishment. He said that cigarettes are one of the biggest commodities in illicit trade today.

According to the United Nations Office on Drugs and Crime, of the 400 billion cigarettes that Africans smoke per year, 60 billion are bought on the black market. A big portion of the sales is used to finance conflicts, Lallerstedt said. He also warned that “once a route has been corrupted,” it could be used to smuggle anything else including drugs, weapons, and people.

Marie-Flore Johnson, a trial attorney with the US Department of Justice in the Computer Crime and Intellectual Property Section, addressed the challenges associated with stopping goods in transit and suggested that customs and borders officers should use a “layered approach” in controlling counterfeits. Whereby in situations in which officers do not have the legal right to examine suspicious goods, they should use other tools available to them, including communicating with officers in other countries.

“The way around this is to build connections. Call a colleague where the goods are supposedly destined and tell them to have a look,” Johnson said, encouraging officers to take advantage of the workshop to network and meet officials from other countries.

Indeed, networking was one of the workshop objectives. A representative of a multinational company told Intellectual Property Watch that special efforts were made to reach out to law enforcement officials participating in the meeting.

However, some customs officials said that cracking down on counterfeits is easier said than done. A law enforcement official from Burkina Faso said during a panel session, “Since yesterday, we have been talking about the counterfeit problem, but you should know that the border control conditions in our countries are very dangerous. People are risking their lives.”